Wakilii

Attorney General v Susan Kigula & Others (Constitutional Appeal 3 of 2006)

Supreme Court · [2009] UGSC 6 · 2009 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal and cross-appeal from a decision of the Constitutional Court on a petition challenging the constitutionality of the death penalty
Decision
Appeal and cross-appeal dismissed; Constitutional Court's declarations confirmed with modified orders. The death penalty held constitutional, mandatory death sentences held unconstitutional (to take effect as maximum sentences), delay beyond three years after confirmation deemed to commute the sentence to life imprisonment without remission, and hanging upheld as a constitutional method of execution.

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Treatment recorded in citing cases followed in 8 · applied in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The death penalty is a constitutionally permitted exception to the right to life under Article 22(1) and is not rendered cruel, inhuman or degrading punishment by Articles 24 and 44(a). However, laws prescribing a mandatory death sentence are unconstitutional because they remove the court's sentencing discretion and deny a hearing in mitigation; such provisions take effect only as maximum sentences. Inordinate delay in carrying out a confirmed sentence is cruel and inhuman: where the President has not exercised the prerogative of mercy within three years of confirmation by the highest court, the sentence is deemed commuted to life imprisonment without remission. By majority, hanging was upheld as a constitutional mode of execution. Appeal and cross-appeal dismissed.

Facts

The respondents were persons convicted of various capital offences under the Penal Code Act and other laws and sentenced to death under the laws of Uganda. They petitioned the Constitutional Court contending that the death penalty was inconsistent with the constitutional prohibition on cruel, inhuman and degrading treatment, that laws prescribing a mandatory death sentence were unconstitutional, that the long delay between sentence and execution produced the death row syndrome amounting to cruel and inhuman treatment, and that hanging as the mode of execution was unconstitutional. The Constitutional Court held the death penalty itself constitutional, found mandatory death sentences unconstitutional, held that delay beyond three years after confirmation by the highest court was unconstitutional, and held hanging constitutional. The Attorney General appealed the findings against the State, and the respondents cross-appealed the findings upholding the death penalty and hanging.

Issues

  1. Whether the death penalty is inconsistent with Articles 20, 21, 22(1), 24, 28, 44(a) and 45 of the Constitution.
  2. Whether Articles 24 and 44(a) of the Constitution were meant to apply to Article 22(1).
  3. Whether the provisions of the laws of Uganda prescribing a mandatory death sentence are unconstitutional.
  4. Whether inordinate delay in carrying out a confirmed death sentence constitutes cruel, inhuman and degrading treatment contrary to Articles 24 and 44(a).
  5. Whether hanging as the method of carrying out the death sentence under section 99(1) of the Trial on Indictments Act is unconstitutional.

Orders

  • Appeal dismissed by unanimous decision; cross-appeal dismissed by majority decision.
  • The declarations made by the Constitutional Court are confirmed, with the orders modified.
  • For respondents whose sentences were already confirmed by the highest court, petitions for mercy under Article 121 must be processed and determined within three years of confirmation; where no decision is made within three years, the death sentence shall be deemed commuted to imprisonment for life without remission.
  • For respondents whose sentences arose from mandatory sentence provisions and are still pending before an appellate court, their cases shall be remitted to the High Court to be heard on mitigation of sentence, and the High Court may pass such sentence as it deems fit under the law.
  • Each party shall bear its own costs.

Key headnotes

Constitutional Law — Death Penalty — Right to Life — Article 22(1) as exception
The death penalty imposed in execution of a sentence passed in a fair trial by a competent court and confirmed by the highest appellate court is a constitutionally permitted exception to the right to life under Article 22(1), and is not inconsistent with the prohibition of cruel, inhuman or degrading punishment in Articles 24 and 44(a).
Statutory Interpretation — Constitution — Rule of Harmony and Completeness
The Constitution must be read as an integrated whole, with no provision destroying another but each sustaining the other; provisions bearing on the same subject are to be construed together to give effect to the purpose of the instrument.
Criminal Law & Procedure — Sentencing — Mandatory Death Sentence
A law prescribing a mandatory death sentence is unconstitutional because it removes the court's sentencing discretion, denies the convict a hearing in mitigation, and offends the rights to equality before the law and to a fair trial; such a provision operates only as a maximum sentence.
Human Rights — Death Row Syndrome — Inordinate Delay in Execution
Inordinate delay in carrying out a confirmed death sentence constitutes cruel, inhuman and degrading treatment contrary to Articles 24 and 44(a); delay beyond three years from confirmation by the highest court is unreasonable, after which the sentence is deemed commuted to life imprisonment without remission.
Constitutional Law — Prerogative of Mercy — Article 121 — Reasonable Time
Although the Constitution sets no express time limit, the Advisory Committee on the Prerogative of Mercy and the President must process and determine the cases of condemned persons without unreasonable delay, by analogy to section 34(2) of the Interpretation Act.
Criminal Law & Procedure — Method of Execution — Hanging
Hanging as a method of carrying out the death sentence is not unconstitutional, the pain and suffering inherent in the process being incidental to the constitutionally permitted punishment (per majority; Egonda-Ntende, Ag. JSC dissenting).

Legislation cited (24)

  • Constitution of Uganda 1995 art.20
  • Constitution of Uganda 1995 art.21
  • Constitution of Uganda 1995 art.22(1)
  • Constitution of Uganda 1995 art.24
  • Constitution of Uganda 1995 art.28
  • Constitution of Uganda 1995 art.28(3)(e)
  • Constitution of Uganda 1995 art.43
  • Constitution of Uganda 1995 art.44(a)
  • Constitution of Uganda 1995 art.45
  • Constitution of Uganda 1995 art.121
  • Constitution of Uganda 1995 art.121(5)
  • Constitution of Uganda 1995 art.126
  • Constitution of Uganda 1995 art.132(4)
  • Constitution of Uganda 1995 art.2(2)
  • Constitution of Uganda 1995 art.237(3)
  • Constitution of Uganda 1995 art.287
  • Trial on Indictments Act (Cap 23) s.99(1)
  • Trial on Indictments Act (Cap 23) s.132
  • Trial on Indictments Act (Cap 23) s.94
  • Trial on Indictments Act (Cap 23) s.98
  • Penal Code Act (Cap 120) ss.25(1), 25(2), 25(3), 25(4), 118, 123(1), 129(5), 184, 273(2), 301B(2), 235(1)
  • Anti-Terrorism Act (Act No. 14 of 2002) ss.7(1)(a), 7(1)(b), 8, 9(1), 9(2)
  • Interpretation Act s.34(2)
  • Constitution of Uganda 1967 art.12(2)

Cases cited (24)

  • Salvatore Abuki v Attorney General [2001] 1 LRC 63
  • Mbushuu & Another v Republic [1994] 2 LRC 335
  • State v Makwanyane and Another [1995] 1 LRC 269
  • Kalu v The State [1998] 13 NWLR 54
  • Paul Ssemogerere v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Chitat Ng v Canada, Communication No. 469/1991 (UNHRC)
  • MITHU -Vs- STATE OF PUNJAB 1983 SOL CASE NO. 026
  • Reyes v The Queen [2002] UKPC 11
  • Woodson v North Carolina, 428 US 280 (1976)
  • Kafantayeni & Others v Attorney General, Constitutional Case No. 12 of 2005 (Malawi)
  • Michael de Freitas v George Ramoutar Benny & Others [1976] AC 239
  • Pratt and Morgan v Attorney General of Jamaica [1994] 2 AC 1
  • Catholic Commission for Justice and Peace in Zimbabwe v Attorney General & Others [1993] 2 LRC 279
  • Neville Lewis v Attorney General of Jamaica [2001] 2 AC 50
  • RILEY
  • Trop v Dulles, 356 US 86 (1958)
  • Furman v Georgia, 408 US 238 (1972)
  • Gregg v Georgia, 428 US 153 (1976)
  • Herrera v Collins, 506 US 390 (1993)
  • UNITED STATES -Vs- WILSON
  • Soering v United Kingdom (1989) Application No. 14038/88
  • Chitat Ng v Canada, Communication No. 469/1991 (UNHRC)
  • Ireland v United Kingdom (1978) Application No. 5310/71
  • Kyamanywa
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.